Fracking in Louisiana: The Missing Process/Land Use Distinction in State Preemption and Opportunities for Local Participation

Author:Alex Ritchie
Position:Associate Professor of Law, Karelitz Chair in Oil and Gas Law, University of New Mexico School of Law, B.S.B.A. 1993, Georgetown University, J.D. 1999, University of Virginia.
Pages:809-862
 
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Fracking in Louisiana: The Missing Process/Land Use
Distinction in State Preemption and Opportunities for
Local Participation
Alex Ritchie
TABLE OF CONTENTS
Introduction .................................................................................. 810
I. Background: The Fracking Dispute in St. Tammany Parish ........ 816
II. Preemption Statutes and Decisions in Most States Preserve
At Least Some Land Use Authority.............................................. 819
A. The New Texas Preemption Statute ....................................... 819
B. The New Oklahoma Preemption Statute ................................ 823
C. Court Decisions in Other States Recognize the
Process/Land Use Distinction ................................................ 824
III. Louisiana at the Extreme of State Control .................................... 829
A. Reserving Land as Justification for Local Control................. 829
B. Louisiana Statutes Preempt Land Use Authority ................... 834
IV. Louisiana’s Home Rule Authority Fails to Support Local
Regulation of the Location of Wells ............................................. 837
A. The Road to Home Rule in Louisiana .................................... 838
B. Judicial Invigoration of Louisiana Home Rule ...................... 841
C. Judicial Re-marginalization of Louisiana Home Rule ........... 843
V. Process and Land Use Overlap in the Oil and Gas Context ......... 847
VI. Compromise and Participation as Alternatives to Local
Control .......................................................................................... 853
A. Cooperative Governance or Compromise .............................. 853
Copyright 2016, by ALEX RITCHIE.
Associate Professor of La w, Karelitz Chair in Oil and Gas Law, University
of New Mexico School of Law, B.S.B.A. 1993, Georgetown University, J.D. 1999,
University of Virginia. The Author is grateful to Kenneth Murchison, Visiting
Professor of Law, University of New Mexico School of Law, Emeritus Professor,
Paul M. Hebert Law Center, Louisiana State University, for his thoughtful
comments and discussion of home rule in Louisiana. The Author also thanks
Ernesto A. Longa, Professor of Law Librarianship, and Alexandra R. Siek, Law
Librarian, University of New Mexico School of Law, for their research assistance.
810 LOUISIANA LAW REVIEW [Vol. 76
B. Local Participation in the Drilling Decision: The
Natural Resources Article to the Louisiana Constitution ....... 856
Conclusion .................................................................................... 862
INTRODUCTION
Oil and gas development is testing and defining the boundaries of local
government authority and autonomy as concerned municipal entities and
citizens seek to limit oil and gas operations. Advances in high-volume
hydraulic fracturing have increased domestic oil and gas production to
historic levels.1 At the same time, national and international concerns about
irreversible man-made global warming have focused on fossil fuel
combustion.2 National groups opposed to continued reliance on oil and gas
as an energy source have found willing partners in many local governments
and their citizens, who are anxious about the local implications of drilling
and fracking.3 Many citizens and environmental organizations coalesce
around local environmental risks such as the potential degradation of ground
and surface waters and air quality, seismic activity, and social and economic
costs on the local area—including increased truck traffic, road damage,
noise, housing shortages, and boom and bust cycles.4 Particularly in urban
or suburban areas, voters may also perceive drilling and fracking as a threat
to property values, aesthetics, and lifestyles.
1. The United States has become the largest producer of petroleum and natural
gas in the world, surpassing Russia in natural gas production and Saudi Arabia in
oil production. See Adam Sieminski, Presentation, Oil and Gas Outlook 14 (Oct.
16, 2015), available at http://www.eia.gov/pressroom/presentatio ns/sieminski
_10162015.pdf [perma.cc/F2V7-TUD2].
2. See Climate Change and President Obama’s Action Plan, WHITEHOUSE
.GOV, https://www.whitehouse.gov/climate-change [p erma.cc/2GGM-CMWK] (last
visited Dec. 27, 2015) (stating that carbon pollution is the biggest driver of climate
change).
3. See, e.g., Fracking: Community Defense, NRDC, http://www.nrdc.org/land
/fracking-community-defense/?gclid=Cj0KEQiAuremBRCbtr-1qJnKi-4BEiQAh0
x08G5Ia-q4N-5_wpQYvDYFWXlAtXaquuwKRYXZB2PpnUIaAjGB8P8HAQ
[perma.cc/72ZB-65D6] (last visited Nov. 17, 2015) (“The Community Fracking
Defense Campaign brings the grassroots power of communities facing fracking
together with the expertise of NRDC’s polic y and legal team.”).
4. For a discussion of various potential environmental risks and recommended
regulatory responses, see Hanna J. Wiseman, Risk and Response in Fracturing
Policy, 84 U. COLO. L. REV. 729 (2013).
2016] FRACKING IN LOUISIANA 811
Now that fracking has become a topic of wider public interest, at least
to the media and the relatively informed public,5 local government efforts to
control oil and gas operations appear to be a modern phenomenon. These
recent efforts are, however, little more than “old wine in new bottles.” The
Cities of Winkfield and Oxford, Kansas, adopted municipal oil and gas
ordinances in the late 1920s that focused on the prevention of waste and the
protection of correlative rights,6 and cases that upheld the application of
zoning ordinances to oil and gas operations began appearing in the 1930s.7
Because neither fracking nor the local regulation of oil and gas
operations are particularly new,8 what has changed may be a matter of
degree. As advances in technology unlock new resources, drilling and
completion activities intensify in new areas that are rich in shale resources.9
5. Those who study oil and gas issues or work in related fields may be
particularly aware of the media coverage, but a 2013 study concluded that the
American populace is largely unaware o f and undecided about hydraulic fracturing. See
Hilary Boudet et al., “F racking” Controversy and Communication: Using National
Survey Data to Understanding Public Perceptions of Hydraulic Fracturing, 65 ENER GY
POLY 57, 63 (2014), available at http://dx.doi.org/10.1016/j.enpol.2013.10.017
[perma.cc/Z88X-VQEH].
6. See Bruce M. Kramer, The State of State and Local Government Relations
as It Impacts the Regulation of Oil and Gas Operations: Has the Shale Revolution
Really Changed the Rules of the Game?, 29 J. LAND USE & ENVTL. LAW 69, 71–
72 (2013).
7. See, e.g., Anderson-Kerr, Inc. v. Van Meter, 19 P.2d 1068, 1074 (Okla.
1933) (“The governing body of the city has a right to regulate the oil industry and
the drilling of wells within its corporate limits or to prohibit them from being
drilled in certain designated territory.”); Van Meter v. Westgate Oil Co., 32 P.2d
719, 721 (Okla. 1934).
8. Hydraulic fracturing, meaning the use of water to fracture rock
formations to produce oil and gas, “was first tested in 1903 and first used
commercially in 1948.” Thomas E. Kurth, Michael J. Mazzone, Mary S. Mendoza
& Christopher S. Kulander, American Law and Jurisprudence on Fracing, at 1,
3, NW. PRITZKER SCH. L. (2012), https://www.law.northwestern.edu/research-
faculty/searlecenter/workingpapers/documents/Kulander_2012_Fracing_Paper.p
df [perma.cc/NN88-V7UA]. Horizontal drilling combined with slick-water
hydraulic fracturing at sufficient pressure to commercially produce shale and
other tight formations began around 1997 in the Barnett Shale, reinvigorating the
oil and gas industry. See J. Lanier Yeates & Andrew M. Abrameit, Current Issues
In Oil & Gas Shale Development, 58 ANN. INST. MIN. L. 146, 146 (2011).
9. See, e.g., Growth in U.S. Energy Production Outstrips Consumption Growth,
U.S. ENERGY INFO. ADMIN. (Dec. 5, 2012), http://www.eia.gov/pressroom/releases
/press379.cfm [perma.cc/D8SH-8EFX] (describing growth in oil production from
shale and other tight formations (Figure 1) and growth in shale gas production (Figure
3)).

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